Citation Nr: 0025252
Decision Date: 09/21/00 Archive Date: 09/27/00
DOCKET NO. 96-37 107A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for the cause of death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Robinson, Associate Counsel
INTRODUCTION
The veteran had active service from May 1951 to May 1953.
The appellant is the veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 1995 rating determination of a
Department of Veterans Affairs (VA) Regional Office (RO).
In a February 1999 rating decision, the RO increased the
veteran's 40 percent disability rating for residuals of shell
fragment wounds to the left buttock and thigh to 50 percent
disabling, effective September 1, 1953 and granted
entitlement to Dependency and Indemnity Compensation (DIC)
under the provisions of 38 U.S.C.A. § 1318.
The issue of basic eligibility for Department of Veterans
Affairs loan guaranty benefits will be discussed in the
remand portion of this decision.
FINDINGS OF FACT
1. The veteran died on July [redacted], 1995, the cause of death
was acute myocardial infarction due to hypertensive
cardiovascular disease. Chronic bronchitis and fatty liver
were listed as other significant conditions contributing to
death.
2. At the time of the veteran's death, service connection
was in effect for amputation, right forearm below pronation
level, evaluated as 70 percent disabling; residuals, shell
fragment wound (SFW), left buttock and thigh, evaluated as 50
percent disabling; residuals, SFW, left forearm, evaluated as
30 percent disabling; and residuals, SFW, left flank,
evaluated as 20 percent disabling. He was entitled to a
combined evaluation of 100 percent, effective January 4,
1979, and special monthly compensation on account of the
anatomical loss of a hand.
3. The weight of the evidence is in favor of a conclusion
that the veteran's service connected disabilities hastened
death.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
warranted. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R.
§ 3.312 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
A review of the certificate of the veteran's death discloses
that he died in July 1995 at the age of 62. The immediate
cause of death was listed as acute myocardial infarction, due
to hypertensive cardiovascular disease. The approximate
interval between the fatal condition and death was shown to
be hours. The approximate interval between hypertensive
cardiovascular disease and death was years. Other
significant conditions contributing to the cause of death but
not related to death were chronic bronchitis and fatty liver.
During the veteran's lifetime, service connection was in
effect for the following:
Amputation, right forearm below pronation level, evaluated as
70 percent disabling; residuals, shell fragment wound (SFW),
left buttock and thigh, evaluated as 50 percent disabling;
residuals, SFW, left forearm, evaluated as 30 percent
disabling; and residuals, SFW, left flank, evaluated as 20
percent disabling. His combined evaluation was 100 percent
effective, August 17, 1989. Prior to that date he was in
receipt of a total rating based on individual unemployability
by reason of his various service-connected disabilities from
January 4, 1979.
The veteran's wounds were sustained in combat during the
Korean War.
A review of the service medical records is without reference
to any complaints or findings indicative of cardiovascular
disease or lung disease. The service records show that the
veteran was treated for wound, missile to the left forearm,
right forearm, right hand, left flank, and left hip;
amputation, traumatic, right forearm, cicatrix, skin, left
leg, due to missile wound, foreign bodies, retained in the
left arm, right arm, and left hip; acute appendicitis, and
adhesions peritoneal.
Post service medical records reflect periodic evaluations
over the years for the above service connected disabilities
with no indication of cardiovascular disease or lung disease.
The 1953 VA examination report revealed a normal
cardiovascular system, normal respiratory system, and
unremarkable liver and spleen.
The records shows that the veteran underwent a number of
operations for removal of foreign material as well as relieve
pain and discomfort due to his service connected
disabilities.
In a September 1996 statement, P. Changaris, D.C. reported
that the veteran had been his patient from May 1994 to May
1995. He reported that the veteran presented with complaints
of severe, constant low back and pelvic pain. X-rays
revealed arthritis and shrapnel overlying the left pelvis and
spine. He reported that the veteran had numerous military
related surgeries to help alleviate his musculoskeletal pain
and took numerous amounts of mediation to ease his
discomfort. He stated that the veteran suffered chronic
musculoskeletal pain from service inflicted injuries which
may have contributed to his shortened life.
In a September 1996 statement, D. Miller, D.O. reported that
the veteran had been his patient since January 1991. He
reported that the veteran had a family history of coronary
artery disease. He reported that the veteran had
hypertension and was limited by his residuals of SFWs. It
was noted that the veteran experienced frequent pains in the
lower extremities and low back for which he took analgesics
daily. The veteran also experienced left shoulder pain. He
reported that the veteran also had problems with epigastric
discomfort which was most likely aggravated by the anti-
inflammatories that he took for his low back, lower
extremity, and left shoulder pain.
Dr. Miller further reported that he felt that the veteran's
death was due to a sudden cardiac event. He stated that it
was difficult to determine whether some of the veteran's
previous symptoms may have been warning signs of angina,
since he suffered left shoulder pain and epigastric
discomfort for a number of years. He reported that the
medication might have disguised any coronary problems. He
reported that the veteran's lack of activity due to war
injuries and family history of heart disease put him at a
higher risk for heart disease. He opined that the veteran's
military injuries might have shortened his life span due to
his inactivity.
In an October 1996 memorandum, the RO requested an opinion as
to whether or not the veteran's service connected
disabilities substantially or materially combined to cause
death, or aided or lent assistance to the production of
death.
In an undated statement, R. Stevens, M.D., VA physician,
reported that he had reviewed the veteran's claims folder
with particular attention to the veteran's treating
physicians' statements. He reported that there was no
evidence that the veteran's service connected musculoskeletal
or gastric symptoms were indicative of, or masked the
symptoms of cardiovascular disease. He also reported that
the risk factors of positive family history of premature
heart disease and hypertension were the main causes of the
veteran's fatal acute myocardial infarction at the age of 62.
Dr. Stevens opined that neither the neither the veteran's
service connected disabilities nor their treatment
contributed substantially or materially to cause death or
aided or lent assistance to the production of death.
In a July 1997 statement, Dr. Miller reported that the
veteran's death was due to a sudden cardiac event. He
reported that the veteran was seen on several occasions over
the years with complaints referable to his service-connected
disabilities. He reported because of the veteran's constant
left shoulder pain and the anti-inflammatories prescribed for
his multiple pains and aches, he developed gastritis. He
reported that for this reason cardiac problems were not
easily diagnosed.
Dr. Miller reported that veteran's epigastric and heartburn
symptoms, as well as his left shoulder pain, may very well
have been angina attacks that were disguised by his injuries.
He reported that no cardiac tests were performed, other than
occasional resting electrocardiograms, which were
unremarkable. He stated that for this reason he felt that
the service connected injuries hindered the diagnosis of a
cardiovascular disease.
Private medical records dated from March to May 1994 show
that the veteran was seen with complaints of left shoulder
pain. His past medical history included hypertension. The
diagnoses were peritendinitis, bursitis, left shoulder; early
degenerative changes anterior aspect, glenohumeral joint,
left; and myositis ossificans about the left shoulder. It
was noted that Ansaid produced gastrointestinal discomfort.
In an August 1997 statement, the appellant's daughter
reported that she believed that the veteran's service
connected disabilities and medication hindered the diagnosis
of his cardiovascular disease.
Pertinent Law and Regulations
The surviving spouse of a veteran who dies as the result of
injury or disease incurred in or aggravated by service will
be entitled to compensation. 38 U.S.C.A. § 1310 (West 1991).
Service connection will be granted for the cause of the
veteran's death if a service-connected disability was a cause
or a contributory cause of death.
VA has implemented the provisions of § 1310, by adopting the
following regulation:
(a) General. The death of a veteran will
be considered as having been due to a
service-connected disability when the
evidence establishes that such
disability was either the principal or a
contributory cause of death. The issue
involved will be determined by exercise
of sound judgment, without recourse to
speculation, after a careful analysis has
been made of all the facts and
circumstances surrounding the death of
the veteran, including, particularly,
autopsy reports.
(b) Principal cause of death. The
service-connected disability will be
considered as the principal (primary)
cause of death when such disability,
singly or jointly with some other
condition, was the immediate or
underlying cause of death or was
etiologically related thereto.
(c) Contributory cause of death. (1)
Contributory cause of death is inherently
one not related to the principal cause.
In determining whether the service-
connected disability contributed to
death, it must be shown that it
contributed substantially or materially;
that it combined to cause death; that it
aided or lent assistance to the
production of death. It is not
sufficient to show that it casually
shared in producing death, but rather it
must be shown that there was a causal
connection.(2) Generally, minor service-
connected disabilities, particularly
those of a static nature or not
materially affecting a vital organ,
would not be held to have contributed to
death primarily due to unrelated
disability. In the same category there
would be included service-connected
disease or injuries of any evaluation
(even though evaluated as 100 percent
disabling) but of a quiescent or static
nature involving muscular or skeletal
functions and not materially affecting
other vital body functions. (3) Service-
connected diseases or injuries involving
active processes affecting vital organs
should receive careful consideration as
a contributory cause of death, the
primary cause being unrelated, from the
viewpoint of whether there were resulting
debilitating effects and general
impairment of health to an extent that
would render the person materially less
capable of resisting the effects of other
disease or injury primarily causing
death. Where the service-connected
condition affects vital organs as
distinguished from muscular or skeletal
functions and is evaluated as 100 percent
disabling, debilitation may be assumed.
(4) There are primary causes of death
which by their very nature are so
overwhelming that eventual death can be
anticipated irrespective of coexisting
conditions, but, even in such cases,
there is for consideration whether there
may be a reasonable basis for holding
that a service-connected condition was of
such severity as to have a material
influence in accelerating death. In this
situation, however, it would not
generally be reasonable to hold that a
service-connected condition accelerated
death unless such condition affected a
vital organ and was of itself of a
progressive or debilitating nature.
38 C.F.R. § 3.312 (1999).
The debilitating effects of a service-connected disability
must make the veteran materially less capable of resisting
the fatal disease, or must have had a material influence in
accelerating death. See Lathan v. Brown, 7 Vet. App. 359
(1995).
Well-Grounded Claim
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded
claim. That is, is the claim plausible and meritorious on
its own or capable of substantiation? If he or she has not,
the appeal must fail and the Board has no duty to further
assist him or her with the development of the claim. 38
U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990).
Case law provides that, although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis); or aggravation of a disease or injury in service
(lay or medical evidence); and of a nexus between the
inservice injury or disease and the current disability
(medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995);
see also Epps v. Gober, 126 F.3d 1464 (1997).
For service connection for the cause of death of a veteran,
the first requirement, evidence of a current disability will
always have been met. (The current disability being the
condition that caused the veteran to die). However, the last
two requirements must also be supported by the evidence of
record. Ruiz v. Gober, 10 Vet. App. 352, 356 (1997); Ramey
v. Brown, 9 Vet. App. 40, 46 (1996).
The 2nd and 3rd Caluza elements can also be satisfied under
38 C.F.R. § 3.303(b) (1999) by (a) evidence that the
condition was "noted" during service or during an applicable
presumptive period; (b) evidence showing post service
continuity, symptomatology; and (c) medical, or in certain
circumstances, lay evidence of a nexus between the present
disability and the post service symptomatology. Clyburn v.
West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App.
488, 495-97 (1997); 38 C.F.R. § 3.303(b).
Alternatively, service connection may be established under §
3.303(b) by evidence (i) the existence of a chronic disease
in service or during an applicable presumptive period and
(ii) present manifestations of the same chronic disease.
Brewer v. West, 11 Vet. App. 228, 231 (1999).
A secondary service connection claim is well grounded only if
there is medical evidence to connect the asserted secondary
condition to the service-connected disability. Wallin v.
West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet.
App. 432 (1997); see Locher v. Brown, 9 Vet. App. 535, 538-39
(1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17
(1995), for the proposition that lay evidence linking a fall
to a service-connected weakened leg sufficed on that point as
long as there was "medical evidence connecting a currently
diagnosed back disability to the fall"); Jones (Wayne) v.
Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one
condition was caused by a service-connected condition was
insufficient to well ground a claim).
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Sacks v. West,
11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993). Lay assertions of medical causation or
diagnosis cannot constitute evidence to render a claim well
grounded under 38 U.S.C.A. § 5107(a); if no cognizable
evidence is submitted to support a claim, the claim cannot be
well grounded. Id.
Evidentiary assertions accompanying a claim for VA benefits
must be accepted as true for purposes of determining whether
the claim is well grounded, unless the evidentiary assertion
itself is inherently incredible or the fact asserted is
beyond the competence of the person making the assertion.
King v. Derwinski, 5 Vet. App. 19, 21 (1993).
In the instant, case one private physician and a chiropractor
have concluded that the veteran's service connected
disabilities hastened his death. Thus there is competent
evidence that his service-connected disabilities were
contributing factors in his death. Since there is competent
evidence that the service connected disabilities contributed
to his death, the Board concludes that the claim is well
grounded.
Analysis on the Merits
The competent evidence against the appellant's claim consists
of the opinion of the VA physician, and the fact that the
service connected disabilities were not listed on the death
certificate as having played a role in his death. However,
the VA physician did not give reasons for his opinions, and
did not specifically comment on Dr. Miller's conclusion that
the lack of activity caused by the veteran's service
connected disabilities may have shortened the veteran's life.
On the other hand, the opinion of Dr. Miller was accompanied
by reasons, and was the product of actual observation of the
veteran. Dr. Miller's opinion was buttressed by that of the
veteran's chiropractor, Pete Changaris. Read together, these
opinions are to the effect that the service connected
disabilities hastened the veteran's death in two ways.
First, the disabilities masked the symptoms of the ultimately
fatal heart disease, and thereby delayed its diagnosis and
treatment, and second they caused the veteran to be
sedentary. The VA physician disagreed with the conclusion
that the service connected disabilities masked the fatal
heart disease, but, as just noted, gave no reasons for his
conclusion. He did not comment on the specific opinion that
the disabilities caused the veteran to be sedentary. For
these reasons, the Board finds the opinions Dr. Miller and
Pete Changaris to be more persuasive than that of the VA
physician. Therefore the Board finds that the evidence is in
favor of a conclusion that the service connected disabilities
hastened, and thereby contributed to death. Service
connection for the cause of death therefore warranted.
In reaching this conclusion, the Board is aware of the
admonition contained in § 3.312, that "it would not
generally be reasonable to hold that a service-connected
condition accelerated death unless such condition affected a
vital organ and was of itself of a progressive or
debilitating nature." However, there is evidence of the
debilitating effects of the service-connected disabilities.
First, these disabilities were evaluated as 100 percent
disabling for many years prior to the veteran's death, and
they were not static, inasmuch as the evaluations for these
disabilities increased over the years subsequent to service.
Further, Dr. Miller has described the specific debilitating
effects of the service connected disabilities by noting that
they caused him to be sedentary, experience pain and develop
gastritis.
ORDER
Service connection for the cause of death is granted.
REMAND
The Board notes that in an April 2000 rating decision, the RO
denied basic eligibility to loan guaranty benefits. The
veteran's representative noted disagreement with the decision
in his July 2000 VA Form 646. However, a statement of the
case addressing this matter has not yet been issued.
According to the Court, a remand for this action is
necessary. See Manlincon v. West, 12 Vet. App. 238 (1999).
To ensure full compliance with due process requirements, the
case is remanded for the following:
The RO should issue a statement of the
case to the veteran and her
representative addressing the issue of
basic eligibility for Department of
Veterans Affairs loan guaranty benefits.
The statement of the case should include
all relevant law and regulations
pertaining to the claim. The veteran
must be advised of the time limit in
which she may file a substantive appeal.
38 C.F.R. § 20.302(b).
The case should then be returned to the Board for further
appellate consideration, if an appeal is properly perfected.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals